In the case of Michael Bloomberg’s overreach in banning a specific size of soda drink, the defender is some fellow named Lawrence Gostin. The headline of the article he’s written is “Banning large sodas is legal and smart”.

Really? Legal and smart? His defense of the indefensible has him channeling Paul Krugman, or at least emulating him.

As I’ve said before, it’s always wise to check the premise on which someone like this operates. In this case, the premise is, as you might expect, flawed and the reasoning thin. It all comes down to a word – “imminent” – and the author’s obvious belief that it is the job of government to save us from ourselves. You have to dig through the article a bit, but here’s where Gostin’s claim of legality comes from:

Admittedly, the soda ban would have been better coming from the city’s elected legislature, the City Council. But the Board of Health has authority to act in cases where there is an imminent threat to health. Doesn’t the epidemic of obesity count as an imminent threat, with its devastating impact on health, quality of life and mortality? In any event, the Board of Health has authority over the food supply and chronic disease, which is exactly what it has used in this case.

Members of the Board of Health, moreover, are experts in public health, entitled to a degree of deference. The fact that the proposal originated in the mayor’s office does not diminish the board’s authority and duty to protect the public’s health. Many health proposals arise from the executive branch, notably the Affordable Care Act.

Uh, no, obesity doesn’t qualify as an “imminent” threat such that a Board of Health can arbitrarily declare something “banned”. Why not king size candy bars? Why not New York cheese cake? Why not a whole plethora of sugar soaked products? Well, if you’re paying attention, I’m sure you’ve realized that if this had flown, such bans were likely not far behind.

But back to Gostin. Here’s his real argument:

First, the ever-expanding portions (think "supersized") are one of the major causes of obesity. When portion sizes are smaller, individuals eat less but feel full. This works, even if a person can take an additional portion. (Most won’t because they are satiated, and it at least makes them think about what they are consuming.) Second, sugar is high in calories, promotes fat storage in the body and is addictive, so people want more. The so-called "war on sugar" is not a culture war, it is a public health imperative backed by science.

So, there is good reason to believe New York’s portion control would work. But why does the city have to prove that it works beyond any doubt? Those who cry "nanny state" in response to almost any modern public health measure (think food, alcohol, firearms, distracted driving) demand a standard of proof that lawmakers don’t have to meet in any other field.

Because we don’t, in his opinion, “demand a standard of proof” from lawmakers in any other field, we shouldn’t, apparently, demand that standard in this field. After all it is a “public health imperative” which is “backed by science”. Where have we heard that before (*cough* global warming *cough*)?

So we shouldn’t ask lawmakers to prove that a) obesity is an imminent threat and b) banning large sodas will defeat that threat? Because that’s certainly the premise.

In fact, we should do precisely the opposite of what Gostin says. We should demand “a standard of proof” from out lawmakers that requires they prove whatever bill they’re contemplating is in fact necessary. Want to ban “assault weapons”. Prove to me that such a ban will “curb gun violence”. Stats seem to indicate it will have no effect. The lapse of the previous ban showed no appreciable increase in gun violence and we’ve seen an overall decrease in violence as a whole.

In this case, the ban Gostin tries to defend and contrary to his headline claims, was neither legal or smart. It was arbitrary and poorly thought out (if it was thought out at all – seems more like it was a capricious act grounded in an inflated belief in the power Mayor Bloomberg thought he had). And according to a NY state judge, it wasn’t legal either.

Of course Gostin tries a transparently obvious bit of nonsense by blaming the failure on “Big Food” and a compliant judge buying into their arguments. It is the usual fall back position for someone who has nothing. And his trump card is to compare the food industry to, you guessed it, the tobacco industry. “Big” anything to do with business or industry is a liberal boogyman invoked when arguments are weak. And Gostin’s is about as weak as they come. His attempt to fob this off on the “usual suspects” is, frankly, laughable.

I note this particular “defense” by Gostin simply to point out that there are people out there, people others consider to be rational and intelligent (and, apparently, who can get things published on CNN) that can rationalize curbing you freedoms and liberties through the use of force (law and enforcement) because they actually believe they know what is best for you and have the right to act on that on your behalf.

What we need to do, quickly, is find a way to dissuade the nannies of the world from that belief. They need to understand that freedom means they’re free to act on what they believe in circumstances like this but they’re not free to decide that others must do it too, because they’ve decided that’s the “smart” thing to do. Freedom means the right to fail, get fat, do stupid things (that don’t violate the rights of others), etc. We’re issued one mother in our lives. And it’s not the state.